October 25, 2021, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Discovery examinations are a regular feature of all civil proceedings including personal injury cases. They can be difficult for injured clients to attend particularly for those individuals who have serious injuries and anyone who lives outside a major urban centre. The COVID-19 pandemic has forced significant changes upon the antiquated legal system. One of the most welcome changes has been virtual discovery.
While there remain some who are not happy with the change, for the majority of those involved (from legal staff and lawyers to plaintiffs and defendants) it has proven much quicker and less costly.
The recent decision in Worsoff v. MTCC 1168 by Justice Myers indicates that the courts hold little sympathy for those wishing in-person discovery as permitted since the amendment of the Rules of Civil Procedure (January 2021) that allow video conferencing.
Justice Myers noted that all parties had served notices of examination, however, the plaintiff’s lawyer requested in-person appearances. The defendant objected to this request as they preferred virtual conferencing. The plaintiff had no objection to being examined by video.
According to the new rules 1.08(8) states that if parties required to attend discovery cannot agree on live attendance or virtual attendance then a case conference shall be requested to direct the method. Rule 1.08(6) states the following shall be considered:
Method to be Determined by Order
(6) At the case conference referred to in subrule (5), the court shall make an order directing the method of attendance at the hearing or step and, in doing so, the court shall consider, as applicable
(a) the availability of telephone conference or video conference facilities;
(b) the general principle that evidence and argument should be presented orally in open court;
(c) the importance of the evidence to the determination of the issues in the case;
(d) the effect of a telephone conference or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;
(e) the importance in the circumstances of the case of observing the demeanour of a witness;
(f) whether a party, witness or lawyer for a party is unable to attend by a method because of infirmity, illness or any other reason;
(g) the balance of convenience between any party wishing the telephone conference or video conference and any party or parties opposing; and
(h) any other relevant matter.
In his decision, Justice Myers indicated that the above factors apply more so to court hearings rather than to the situation currently being faced with regards to the Pandemic and public gathering restrictions associated with it. In fact, the factors noted above seem to have no significance when considering the ‘out of court’ process we are currently in.
Justice Myers stated:
 In the vast majority of cases, the method of attendance at an examination for discovery should be a matter of agreement. A party who insists on a particular method should have a good reason for declining to cooperate when someone else puts forward an alternative preference supported by a reason. In my view, parties are hard-put to show that there is a difference that actually matters practically in most examinations for discovery.
 The defendants submit that we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.
Most significantly he noted that:
 In my view, a preference for remoteness while the pandemic remains with us is reasonable all else being equal.
It was also noted by Justice Myers that in cases of Simplified Procedure or in cases where credibility is not an issue there can be significant benefits to access to justice issues when remote proceedings are used.
- Litigants not being required to take entire days off work, and spending money to drive, park or take transit, represents real savings and access to justice
- Lawyers save significant travel and wait times significantly decreasing costs for clients
- Clients save significant costs when their lawyers are not required to travel.
- The efficiency of lawyer’s practices and time use is substantial
Shortcomings of using virtual proceedings were also noted by Justice Myers and these included:
- Inexperience with technology
- Potential for misconduct
From the decision:
 All of these issues have been canvassed elsewhere. The state of the art is evolving. Some real changes are happening with the potential to actually improve access to civil justice for the public. I do not accept that the pandemic is over so we should all just go back to the way it was. That assumes that the “good old days” were actually good.
 …Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view. Older judges and counsel may be behind younger counsel and the rest of society who use computers with greater regularity and sophistication than we do. But everyone in the civil litigation system in
Ontario has had to learn to use the Civil Submissions Online portal and Caselines for example. Technological change affects everyone…
 It’s now 2021. Virtual proceedings have proven to be one of the first significant enhancements in access to justice since Hryniak was decided in 2014. I am not discussing trials (and the savings available by expert witnesses testifying remotely) or even cross-examination on an affidavit out of court under subrule 34.01 (c) for that matter. But I see no good reason to put the defendants to any increased risk of COVID-19 or to bring their lawyer to Toronto for one side’s Simplified Procedure examinations for discovery in this case.
This is all subject to change once the pandemic is over. At that time in-person discoveries may resume presuming that all parties agree. In-person discoveries to have benefits including:
1. Allowing counsel to develop relationships
2. Facilitating discussions about settlements
However, as we all become more accustomed to online communication this too may change.